Dawson v The Commissioner of Police et Al
| Jurisdiction | Bermuda |
| Judge | Kawaley, C.J. |
| Judgment Date | 13 February 2013 |
| Docket Number | 397 of 2012 |
| Court | Supreme Court (Bermuda) |
| Date | 13 February 2013 |
Supreme Court
Kawaley, C.J.
397 of 2012
Mr Lawrence Scott, Scott & Scott, for the applicant
Mr. Kyle Masters, Trott & Duncan, for the 2nd respondent
Ms Shakira Dill, Attorney — General's Chambers, for the 1st respondent
Judicial Review - Application to set aside the grant of leave — Misuse of power — whether the police association misused their power by not protecting the welfare of a member who was being disciplined — Application set aside.
By a Notice of Application dated October 29, 2012, the applicant sought leave to seek judicial review of the June 23, 2012 decision of the Commissioner of Police, the 1st respondent (“COP”), which resulted in the termination of her employment as a Police Officer. Although no “decision” made by the 2nd respondent, the Bermuda Police Association (“BPA”), was expressly challenged, the following relief was sought against the BPA:
“4. An order of mandamus requiring the 2nd respondent to comply with the provisions of its Rules to protect the welfare of the applicant.”
On November 15, 2012, without a hearing, I made the following decision which was communicated to the applicant's counsel by email:
“The applicant applied pursuant to Order 53 rule 5 for leave to seek judicial review on October 29, 2012 at 11.43 am. For administrative reasons which are unclear, the application only reached my desk today, over two weeks after it was filed.
The applicant complains that she was constructively dismissed on June 23, 2012 when she was pressured to resign when accused of a disciplinary offence in breach of the statutory procedure laid down by the Police (Discipline) Orders 1976. She seeks, inter alia, an order of certiorari quashing the purported termination of her employment and a declaration that it was invalidly terminated in breach of her statutory procedural rights.
The claim against the 1st respondent appears arguable based on the material presently before the Court and I grant leave accordingly. Leave is for practical purposes granted as against both respondents at this stage although the claim against the 2nd respondent seems tenuous in the extreme.” [emphasis added]
By Summons dated January 21, 2013, the BPA applied to set aside the grant of leave. This Summons was listed for hearing before me on February 7, 2013 and the BPA's counsel and the applicant's counsel both filed skeleton arguments in support of in opposition to the application to set aside the grant of leave. In these circumstances I decided to hear the application substantively on the first return date of the Summons.
After hearing counsel for the parties affected by the January 21, 2013 Summons, I set aside the grant of leave against the BPA and awarded the costs of the successful application to the BPA as against the applicant, to be taxed if not agreed. I now give reasons for that decision.
The applicant's case against the BPA
The applicant's primary complaint was that the procedure adopted by the COP at a meeting on June 23, 2012 when she was persuaded to resign was unlawful and as a result her resignation was of no legal effect. However, woven onto the outer edge of the main fabric of her case was the following subsidiary complaint. In reliance upon section 28(2) of the Police Act 1974 and paragraph 2(1) Bermuda Police Association Regulations 1968 (Grounds, paragraph 8) and the assertion that the BPA was bound to adhere to the disciplinary protections provided by the Police (Disciplinary) Orders 1976 (Ground 10), the following substantive case was asserted against the BPA:
“13. Such failure by the second respondent to look after the welfare of the applicant aided the first respondent in making a decision to breach the applicant's legitimate expectation of a fair hearing as set out in paragraph 12 above.
14. The decision of the first and second respondents to unduly influence the applicant's decision to resign by failure to follow the proper rules and by shouting (“you're a liar”) and remaining silent respectively thereby causing the applicant to resign, resulting in the applicant's los[s] of office is thereby void for breach of procedural irregularity and/or in breach of her legitimate expectation of a fair hearing and a full career in the Police Service.”
When the Grounds are read with the applicant's October 29, 2012 affidavit, it is clear that the essence of the complaint against the BPA is as follows. The BPA's President was present in a disciplinary meeting in the course of which the COP pressured her to resign in violation of her statutory fair hearing rights. The BPA's silence and omission to look after her welfare by assisting her to enforce her statutory rights was in breach of its own statutory obligations and contributed to the COP's invalid constructive dismissal decision.
This complaint seemed tenuous on its face primarily because the statutory obligations relied upon did not on their face appear to apply to the disciplinary context at all. Section 28(2) of the Police Act 1974 provides as follows:
“(2) The objects of the Bermuda Police Association shall be to enable members of the Service of or below the rank of Chief Inspector to consider, and bring to the notice of the Governor, Commissioner or Government all matters affecting their welfare and efficiency including pay, pensions and conditions of service, other than questions of discipline and promotion affecting individual members of the Service.” [emphasis added]
Regulation 2(1) of the Bermuda Police Association Regulations 1968 also provides:
“2 (1) There is hereby established a body, to be known as the Bermuda Police Association, the objects of which shall be to enable police officers to consider and bring to the notice of the Commissioner, the joint negotiating body, and the Governor all matters affecting their welfare and efficiency, including pay, pensions and conditions of service, other than questions of discipline and promotion affecting individual members of the Service.” [emphasis added]
In addition, however, it was clear that the substantive complaint made was the failure of the applicant's employer to comply with a statutory disciplinary code governing relations between the statutory employer and his statutory employees. It was difficult to see under what legal theory the BPA, a third party to the employment relationship, could be found to be jointly liable as a matter of public law with the COP. Moreover, it was difficult to perceive why the primary relief sought against the COP would not afford sufficient relief in circumstances where it seemed untenable for the BPA to be amenable to free-standing judicial review relief in the event that no relief was available as against the COP.
As I indicated in the course of the hearing, I granted leave on the papers really to avoid the possibility that what might merely have been a poorly pleaded paper case could subsequently prove to be capable of further refinement. The application to set aside leave provided a convenient early opportunity to see whether the applicant was able to fortify her case against the BPA to such an extent as to justify the initial grant of leave.
The BPA's application to set aside leave
The BPA's counsel accepted that the test for granting leave “is not a high one”: Middleton v. DPP [2006] Bda LR 79 per Ground, C.J. (at paragraph 5). However, it was submitted that the following test approved by the Privy Council in Sharma v. Antoine [2006] UKPC 57, [2007] 1 WLR 780 governed the approach to an application to set aside leave (at paragraph 14(6):
“Where leave to move for judicial review has been granted, the court's power to set aside the grant of leave will be exercised very sparingly: R v Secretary of State for the Home Department, Ex p Chinoy (1991) 4 Admin LR 457, 462. But it will do so if satisfied on inter partes argument that the leave is one that plainly should not have been granted: ibid. These passages were cited by Simon Brown J in R v Secretary of State for the Home Department, Ex p Sholola [1992]...
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